JUDGMENT :

Heard Mr. K.K. Mahanta, the learned senior counsel assisted by Mr. K.Sinha, the learned counsel appearing on behalf of the Petitioner as well as Mr. B.Gogoi, the learned counsel appearing on behalf of the Finance Department.

2. The question involved in the instant writ proceeding, is as to whether the imposition of penalty vide the order dated 08.11.2010 by the Govt. of Assam was in violation to the principles of natural justice as well as the judgment of the Supreme Court in the case of Managing Director ECIL Hyderabad and Ors. Vs. B.Karunakar and Ors. reported in (1993) 4SCC 727. The other questions herein raised in the instant writ petition are incidental to this broad question outlined herein above. Taking into account the said question involved, this Court proposes to deal with the brief facts narrated infra.

3. The petitioner received a show cause notice dated 11.02.2009, wherein, the petitioner was asked to show cause against the various allegations made therein against her. The petitioner replied to the said show cause on 21.02.2009, thereupon, another show cause was issued on 30.05.2009, under Rule 9 of the Assam Services (Discipline and Appeal) Rules 1964, (for short the Rules of 1964). The petitioner thereupon submitted her reply on 12.06.2009.

4. On the basis of the said reply submitted by the petitioner, the Commissioner and Secretary to the Govt. of Assam, Finance (Taxation Department) vide a Notification dated 05.10.2009 appointed one Sri. A.N.Bora, Director of Financial Inspection, Assam as the Enquiry Officer and Sri. L.D.Bania, Joint Commissioner of Taxes as the Presenting Officer to cause an enquiry into the departmental proceedings against the petitioner. Thereupon, the enquiry was conducted. It reveals from the record that the Enquiry Report was made on 15.12.2009. However, admittedly the said Enquiry Report was not furnished to the petitioner till 08.11.2010.

5. The petitioner retired from service on 31.03.3010. Subsequent thereto, vide an order dated 08.11.2010 which the petitioner had received it on 11.11.2010, the Governor of Assam had penalized the petitioner under Rule 7 of the Rules of 1964 read with Rule 21 of the Assam Service (Pension) Rules, 1969 by way of withholding of 33% of the gratuity amount entitled to her.

6. At this stage, this Court also finds it relevant to take note of that in terms with Rule 21 of the Assam Service (Pension) Rules, 1969, (hereinafter for short referred to as “the Rules of 1969” and more particularly Sub-Rule(a) any departmental proceedings if instituted while the Officer was in service whether before his retirement or during his re-employment, shall after the final retirement of the Officer be deemed to proceedings under Rule 21 and shall be continued and concluded by the authority by which it was commenced in the same manner as if the Officer had continued in service. The Explanation to Rule 21(a) further stipulates that the continuation of the proceedings after the final retirement of the Officer shall be automatic under Rule 21 (a) and no fresh decision of the Governor and the appointing authority nor any show cause notice to the person concerned shall be necessary.

7. Further, it is also relevant to take note of that in terms of Rule 21, it is the Governor of Assam who has the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and also has the authority of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if in a departmental or judicial proceedings the pensioner is found guilty of great misconduct on negligence during the period of his service, including the service rendered upon reemployment after retirement.

8. Therefore, in view of Rule 21, the order dated 08.11.2010 was passed, thereby, withholding 33% of the gratuity amount entitled to the petitioner. In the instant case, it is an admitted fact that the Enquiry Report was furnished to the